Telangana High Court

J. M. Indira, Alias Laxmi And 3 ... vs M/S Janapriya Engineers ... on 28 December, 2022

Bench: Shameem Akther, Nagesh Bheemapaka

        THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
                          AND
      THE HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA

       CIVIL MISCELLANEOUS APPEAL No.508 OF 2022


JUDGMENT: (Per Hon'ble Dr. Justice Shameem Akther)

      This Civil Miscellaneous Appeal, under Order XLIII Rule 1 and

2 of CPC, is filed by the appellants/plaintiffs, challenging the order,

dated 03.08.2022, passed in I.A.No.1403 of 2021 in O.S.No.315 of

2021 by the III Additional District Judge, Malkajgiri District at

Kukatpally, whereby, the subject I.A.No.1403 of 2021 filed by the

appellants/plaintiffs under Order XXXIX Rules 1 and 2 of CPC

seeking   the   relief   of   temporary   injunction   restraining   the

respondent Nos.1 & 17/defendant Nos.1 & 17 from carrying out

any development work in petition schedule A and B properties,

pending disposal of the suit, was dismissed.

2. We have heard the submissions of Sri Vedula Srinivas,

learned senior counsel, appearing for Sri G.Kalyana Chakravarthy,

learned counsel for the appellants/plaintiffs, Sri Harender Pershad,

learned counsel representing Sri D.Jagan Mohan Reddy, learned

counsel for respondent Nos.1 & 17/defendant Nos.1 & 17 and

perused the record.

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                                                               CMA No.508 of 2022

3. For convenience of discussion, the parties are hereinafter

referred to, as per their array in the subject I.A.No.1403 of 2021

before the Court below.

4. The petitioners filed the subject suit in O.S.No.315 of 2021

before the Court below against the respondents seeking

declaration of title and recovery of possession in respect of suit

schedule A and B properties. In the said suit, the petitioners filed

the subject I.A.No.1403 of 2021 seeking temporary injunction

restraining the respondent Nos.1 & 17 from carrying out any

development work in the petition schedule A and B properties,

pending disposal of the suit. The said application was dismissed

by the Court below vide impugned order, dated 03.08.2022, which

led to filing of this appeal by the petitioners.

5. Learned senior counsel appearing for the appellants/

petitioners would contend that the Court below erred in holding

that the petitioners failed to establish prima facie case and that the

balance of convenience is not in their favour. The entire claim of

the respondent Nos.1 & 17 is based on the agreement of sale

derived from the Power of Attorney holder of the husband of

petitioner No.1. However, as on the date of execution of sale deed

basing upon such GPA, the husband of the petitioner No.1 died and 3 Dr.SA,J & NBK,J CMA No.508 of 2022

as such, the agency came to an end. Even otherwise, said

unregistered agreement of sale is not a valid document and no

claim can be made basing upon the same. The suit schedule

property is a joint family property and it is acquired by the family

of the appellants, including the husband of appellant No.1, by

virtue of succession/inheritance from their ancestors. Therefore,

the husband of appellant No.1 cannot execute any document in

respect of suit schedule property. The joint family of the

appellants filed a partition suit in O.S.No.535 of 1996 seeking

partition in respect of Acs.5.20 guntas and in the said suit, the

husband of the appellant No.1 was arrayed as defendant No.5 and

after his death, the appellants/petitioners were impleaded as

respondent Nos.21 to 24. The said suit was decreed dividing the

property into 24 equal shares and each family was awarded Acs.0-

09 guntas of land. The husband of appellant No.1 got 0.09 guntas

and appellant Nos.2 to 4 got 1/6th share, i.e., 0.15 guntas by

virtue of the said preliminary decree. Basing upon the said

preliminary decree, final decree was passed and the same was

engrossed on 11.05.2017. Pending the subject suit, basing on the

GPA, a sale deed was executed, even though the executant of sale

deed was one of the defendants in O.S.No.535 of 1996. Under the

guise of sale deed, the respondent Nos.2 to 16 sold the property to 4 Dr.SA,J & NBK,J CMA No.508 of 2022

respondent No.1 and the respondent No.1 claims to have assigned

the land to respondent No.17 for the purpose of development. The

Court below erred in holding that already there is an agreement of

sale-cum-GPA executed in the year 1994 by Narasimulu and his

brothers. Further, the finding of the Court below that the death of

husband of appellant No.1 will not invalidate the title of the

respondents is erroneous. Relying on the decision of the Hon'ble

Apex Court in Suraj Lamp and Industries Private Limited Vs.

State of Haryana1, the learned senior counsel contended that the

documents that are executed basing on a GPA are invalid and

cannot be ipso facto valid transactions. The Court below ought not

have recorded a finding that the transaction with the respondents

is genuine and that the respondents are having valid title over the

petition schedule A and B properties. The Court below further

erred in not considering the fact that the appellants have obtained

a decree in a partition suit and it became final and any finding

contrary to the decree is illegal and arbitrary. Considering the

circumstances of the case, the Court below ought to have granted

temporary injunction as sought in the subject I.A.No.1403 of 2021

and ultimately prayed to set aside the order under challenge and

allow the subject I.A.No.1403 of 2021 as prayed for. Learned

AIR 2012 SC 206 5 Dr.SA,J & NBK,J CMA No.508 of 2022

senior counsel had also placed reliance on the decision of a Full

Bench of erstwhile High Court of Andhra Pradesh in B.Venkata

Subbayya and others Vs. N.Srirangam and others2.

6. Per contra, the learned counsel representing the respondent

Nos.1 and 17 would contend that originally, one M.Linga Rao and

16 others were absolute owners of Acs.5.20 guntas of land in

Survey Nos.652, 653, 654, 655 and 678 of Kukatpally. The

original vendors, including M.Linga Rao, entered into an

Agreement of Sale, dated 27.12.1994, for the aforementioned

Acs.5.20 guntas of land in favour of one Abdulla Bin Abood and

eight others for a consideration of Rs.45,00,000/- and ever since,

Abdulla Bin Abood and eight others were in absolute possession of

Acs.5.20 guntas of land. Pursuant to the Agreement of Sale, dated

27.12.1994, the original vendors, including M.Linga Rao, executed

an Irrevocable General Power of Attorney, dated 27.03.1995, in

favour of Abdulla Bin Abood for an extent of Acs.3.27 guntas of

land and the said document was validated on 31.10.1998.

O.S.No.535 of 1996 was filed by one of the heirs of the original

vendors, after the aforementioned Agreement of Sale, claiming

that the plaintiffs therein were co-owners of Acs.0-09 guntas out

MANU/AP/0278/1955.

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                                                          CMA No.508 of 2022




of the aforementioned Acs.5.20 guntas.           The appellants herein

were arrayed as defendant Nos.21, 22, 23 and 24 in the said

O.S.No.535 of 1996 and they were having full knowledge of the

possession of Abdulla Bin Abood and eight others as well as the

execution of the aforementioned Agreement of Sale and General

Power of Attorney. In view of the fact that Abdulla Bin Abood,

being a party to the said suit and the appellants herein also being

parties to the suit, they did not take steps to challenge the General

Power of Attorney and Agreement of Sale. M.Linga Rao passed

away on 04.01.2002. Abdulla Bin Abood has sold Acs.3.35 guntas

(out of Acs.3.37 guntas) to Respondent Nos.2 to 16 herein vide

registered sale deed, dated 12.05.2003 and ever since, respondent

Nos.2 to 16 have been in absolute possession of the

aforementioned Acs.3.35 guntas. Respondent Nos.2 to 16 further

sold the aforementioned Acs.3.35 guntas to the respondent No.1

herein vide registered Agreement of Sale-cum-Irrevocable General

Power of Attorney, dated 28.07.2005 and ever since, respondent

No.1 herein has been in absolute possession of the same. Further,

the appellants, after a long gap of 28 years and after coming to

know about the Agreement of Sale and General Power of Attorney

as well as subsequent transactions and being well aware of the

long standing absolute possession of respondents, filed the subject 7 Dr.SA,J & NBK,J CMA No.508 of 2022

suit O.S.No.315 of 2021 seeking declaration of title and recovery

of possession. Respondent No.17 entered into a Development

Agreement, dated 24.05.2019 with respondent No.1 and having

obtained requisite building permission for construction of

residential flats, commenced the construction and the construction

is in full swing and as such, if any injunction is granted in favour of

the petitioners, the respondents would be put to grave and

irreparable loss, which cannot be compensated by any other

means. The balance of convenience is not in favour of the

appellants. Respondent No.17 is developing an extent of 6,667.77

square metres out of the subject land and obtained construction

permission from GHMC and according to the sanctioned plan,

GHMC has permitted construction of three blocks consisting of 2

cellar + stilt + 15 upper floors in Block-1(A), 1 Stilt + 15 upper

floors in Block-1(B), 1 Stilt + 15 upper floors in Block-1(C) and 1

Ground + 5 upper floors in amenities block. Further, the subject

suit filed by the appellants is liable to be dismissed for non joinder

of necessary parties, as the appellants failed to make the GPA

holder (Abdulla Bin Abood) as well as the joint sharers of Lot No.4

and 7, who were allotted shares in the partition suit along with the

appellants herein as parties to the suit. Under these

circumstances, the Court below rightly dismissed the subject 8 Dr.SA,J & NBK,J CMA No.508 of 2022

I.A.No.1403 of 2021. The appeal is devoid of merit and is liable to

be dismissed and ultimately prayed to dismiss the appeal.

7. In view of the above rival submissions, the points that arise

for determination in this appeal are as follows:

1. Whether the appellants/plaintiffs have made out a prima facie case to grant interim injunction in their favour?

2. Whether the balance of convenience is in favour of the appellants/plaintiffs to grant the relief sought in the subject I.A.No.1403 of 2021 in O.S.No.315 of 2021?

3. Whether irreparable injury would be caused to the appellants/plaintiffs in the event of refusal to grant temporary injunction?

4. Whether the order and decretal order of the Court below impugned in this appeal are liable to be set aside?

5. To what relief?

POINTS:

8. Ordinarily, the three main principles which govern the grant

or refusal of injunction are (a) prima facie case; (b) balance of

convenience; and, (c) irreparable injury. In grant and refusal of

injunction, pleadings and documents play vital role. In the broad

category of prima facie case, it is imperative for the Court to

carefully analyse the pleadings and the documents on record and

only on that basis, the Court must adjudge the existence or 9 Dr.SA,J & NBK,J CMA No.508 of 2022

otherwise of a prima facie case. The Court while granting or

refusing to grant injunction should exercise sound judicial

discretion to find the amount of substantial mischief or

injury which is likely to be caused to the plaintiffs, if the injunction

is refused and compare it with that it is likely to be caused to the

other side if the injunction is granted. Only on weighing

competing possibilities or probabilities of likelihood of injury, an

injunction would be granted. The Court should not interfere only

because the property is a very valuable one. In dealing with such

matters, the Court must make all endeavours to protect the

interest of the parties by balancing the conveniences and

inconveniences. In addition to the basic principles, temporary

injunction, being an equitable relief, the discretion to grant such

relief will be exercised only when the plaintiff's conduct is free

from blame and he approaches the Court with clean hands.

9. In the instant case, the appellants/plaintiffs, to substantiate

their contentions, placed reliance on Exs.P1 to 13 and the

respondents/defendants placed reliance on Exs.R1 to R34. Ex.P1

is the certified copy of plaint in O.S.No.535/1996, which was filed

by M.Ranga Rao for seeking partition of Acs.5.20 in Survey

Nos.652 to 655 and 678. In the said suit, defendant No.5 is none

other than the husband of petitioner No.1 herein. Ex.P2 is the 10 Dr.SA,J & NBK,J CMA No.508 of 2022

pahani to show the existence of Acs.5.20 guntas. Ex.P3 is the

preliminary decree and judgment in O.S.No.535/1996. A perusal

of the said document show that defendant No.5 filed written

statement in the said suit admitting about execution of Agreement

of Sale in the year 1994 and Power of Attorney in the year 1995

(Exs.R34 and R33 respectively). However, a perusal of Ex.P3-

decree and judgment in O.S.No.535/1996 shows that there was no

discussion about those documents and also about the rights of the

defendant Nos.17 to 19, even though there was specific contention

that the property was already sold under Agreement of Sale and

later Power of Attorney was given. As mentioned earlier,

defendant No.5 therein is the husband of the petitioner No.1

herein. Ex.P4 is the order of final decree in O.S.No.535 of 1996

and the petition was filed by the plaintiff therein for his entitlement

of 1/24th share and, accordingly, he was allotted plot No.3 shown

in Advocate Commissioner Report. Ex.P5 is another order of final

decree petition under which, the petitioners herein were allotted

shares. Ex.P6 is the final decree engrossed with respect to the

petition A and B properties, and basing on those documents, the

petitioners are claiming right over the petition A and B schedule

properties. Ex.P7 is filed to show that the husband of petitioner

No.1 died on 04.01.2002, which fact is not in dispute. Ex.P8 is the 11 Dr.SA,J & NBK,J CMA No.508 of 2022

Family Member Certificate given by the MRO/Deputy Collector in

the name of petitioners. Ex.P9 is the certified copy of sale deed,

dated 12.05.2003, executed in favour of respondent Nos.2 to 16

herein by Abdulla Bin Abood representing through Power of

Attorney holder. This document is dated 12.05.2003, and as per

Ex.P7, by that date, the defendant No.5 was no more. In that

document, the husband of petitioner No.1 was shown as 3rd

executant. Basing on this document, respondent Nos.2 to 16 gave

the property to respondent No.1. Ex.P10 is the Agreement of Sale

cum GPA, dated 28.07.2005 executed by respondent No.2 in

favour of the respondent No.1 for an extent of Ac.3.35 guntas.

Ex.P11 are the assignment agreements executed by respondent

No.1 in favour of respondent No.17 for Ac.1.16 guntas and Ex.P12

is another assignment agreement executed by Respondent No.1 in

favour of respondent No.17, for Ac.1.15 guntas. It is not in dispute

that Exs.P11 and P12 were executed by respondent No.1 in favour

of respondent No.17. Basing on those documents, respondent

No.17 took up the construction work. Likewise, it is not in dispute

that the respondent Nos.2 to 16 executed Agreement of Sale cum

Irrevocable GPA, vide Ex.P10, in favour of respondent No.1.

Ex.P13 is the complaint given by the petitioners to the police. The 12 Dr.SA,J & NBK,J CMA No.508 of 2022

admitted fact is that basing on said complaint no case was

registered by the police.

10. The material placed on record reveals that the respondent

No.1 entered into Agreement of Sale with respondent No.17 for

making constructions over the petition schedule A and B

properties. Most of the documents marked on behalf of the

respondents would show neighbouring land and its situation.

Ex.R5 to R31 reveal that third parties have entered into Agreement

of Sale-cum-General Power of Attorney with respondent No.1

herein and the respondent No.1 in turn entered into assignment

agreement with respondent No.17 for the purpose of making

constructions over the petition schedule A and B properties. The

crucial documents in this case are Ex.R1-Certified copy of

Encumbrance Certificate, Ex.R2-Copy of Building Permission,

Ex.R3-Certified copy of the sale deed bearing document No.3286

of 2003, dated 12.05.2003, Ex.R4-certified copy of Agreement of

Sale-cum-General Power of Attorney bearing Document No.9025 of

2005, dated 28.07.2005, Ex.R.32-copies of photographs, Ex.R33-

General Power of Attorney, dated 27.03.1995 and Ex.R34-

Agreement of Sale, dated 27.12.1994. Ex.R1 is the Encumbrance

Certificate which shows transactions entered into between the

respondents in respect of Acs.3.25 guntas of land covered under 13 Dr.SA,J & NBK,J CMA No.508 of 2022

Ex.R33-General Power of Attorney, dated 27.03.1995, and Ex.R34-

Agreement of Sale, dated 27.12.1994. Ex.R2 reveals that the

respondent No.17 obtained permission from GHMC for the purpose

of construction of houses over the petition schedule A and B lands.

Ex.R3 is the certified copy of Sale deed, dated 12.05.2003,

executed by Abdulla Bin Abood who represented the power of

attorney holders. The appellants have admitted about ongoing

constructions over the petition schedule A and B property by the

respondent No.17. There is no denial about execution of Exs.R.33

and R34 by J.Linga Rao/husband of appellant No.1, during his life

time. Ex.R34-agreemenet of sale, dated 27.12.1994, reveals that

the husband of appellant No.1, along with his brothers, sold

Acs.3.37 guntas of land out of Acs.5.20 guntas of land for a sale

consideration of Rs.45,00,000/-. Basing on Ex.R34-agreement of

sale, dated 27.12.1994, Abdulla Bin Abood (one of the agreement

holder) obtained Ex.A33-General Power of Attorney, dated

27.03.1995. Thereafter, he executed sale deed under the original

of Ex.P9.

11. It is the contention of the learned senior counsel for the

appellants/plaintiffs that after the death of principal, Ex.P9 sale

deed was executed and hence, it is not a legally valid document.

As seen from the contents of Ex.R33-General Power of Attorney, 14 Dr.SA,J & NBK,J CMA No.508 of 2022

dated 27.03.1995, it is an irrevocable one. Under Ex.R34, the

total sale consideration in respect of the land admeasuring

Acs.3.25 guntas of land was received by the executants, including

the husband of the appellant No.1. In Ex.R33, a reference to

Ex.R34-agreement of sale is made. There is also reference to

annexure of plan in Ex.R33, wherein, the extent of land given in

Ex.R34, i.e., Acs.3.37 guntas is clearly shown on northern side and

rest of the land in the suit survey numbers is shown on the

southern side. It is also pertinent to state that the husband of the

appellant No.1 is one of the defendants in O.S.No.535 of 1996,

who admitted the execution of Ex.R33-GPA and Ex.R34-Agreement

of sale. So, substantial interest was created in favour of the GPA

holders. A perusal of Ex.R34-agreement of sale reveals that the

husband of appellant No.1 had received the entire sale

consideration of the land in an extent of Acs.3.37 guntas and in

the aforementioned two documents, i.e., Exs.R33 and R34, there

is no mention of the executants therein retaining any of the land

with them. In the southern boundary of Ex.R33-General Power of

Attorney also, they did not show any land they have retained.

Further, after the death of the husband of the appellant No.1, the

appellants herein were arrayed as his legal representatives and

they did not dispute the genuineness of Exs.R33 and R34.

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Further, the Court below, while dealing with the subject matter,

had adverted to Section 202 of the Indian Contract Act which

mandates that where the agent himself has an interest in the

property which forms the subject matter of the agency, the agency

cannot, in the absence of an express contract, be terminated to

the prejudice of such interest. Moreover, the GPA holder is not

made a party to the subject suit. The sale was made in the year

1994 and Ex.R33-GPA is of the year 1995, which were not

disputed by late J.Linga Rao, husband of appellant No.1. The legal

representatives of J.Linga Rao, husband of appellant No.1, did not

dispute the genuineness of Exs.R34 and R33 in O.S.No.535 of

1996. By executing Exs.R34 and R33, substantial interest was

created in favour of the transferee(s). The said interest was not

divested at any point of time. The Court below rightly relied on

Hardip Kaur Vs. Kailash and others3 case, wherein the Hon'ble

Delhi High Court, referring to Suraj Lamp's case (1 supra),

deprecated the practice of alienation by way of agreement of sale

cum power of attorney. Further, the transactions made under

Ex.R34-agreement of sale cannot be said that they were not

genuine. The specific case and contention of the appellants/

plaintiffs is that they have got Acs.0.10.5 guntas of land in the suit

193 (2012) DLT 168 16 Dr.SA,J & NBK,J CMA No.508 of 2022

survey numbers towards their share, having succeeded the same

from J.M.Narasimlu @ Narasimha Rao and they are still in joint

possession and ownership of the suit property. Therefore, during

the pendency of suit, which is filed for partition and separate

possession, their interest is required to be protected. There is no

explanation as to why the appellants have filed the subject suit

after the lapse of 28 years from the date of execution of Exs.R33

and R34. Moreover, they have not denied the execution of those

documents by the husband of the appellant No.1 along with other

persons in O.S.No.535 of 1996. There is record to show that

Abdulla Bin Abood has sold Acs.3.35 guntas (out of Acs.3.37

guntas) to Respondent Nos.2 to 16 herein vide registered sale

deed, dated 12.05.2003 and ever since, Respondent Nos.2 to 16

had been in absolute possession of the aforementioned Acs.3.37

guntas. There is also record to show that Respondent Nos.2 to 16

further sold the aforementioned Acs.3.35 guntas to the respondent

No.1 herein vide registered Agreement of Sale-cum-Irrevocable

General Power of Attorney, dated 28.07.2005 and ever since,

respondent No.1 herein has been in possession. Further, the said

property was given for development to respondent No.17, who

obtained all the requisite permissions from GHMC and construction

is going on.

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                                                           CMA No.508 of 2022

12. In view of the material placed on record, we are of the

considered view that the appellants/plaintiffs failed to make out a

prima facie case and balance of convenience in their favour. There

is no record to hold that the appellants/plaintiffs are in possession

of the subject land. The record is otherwise and it is in favour of

the respondents to establish their possession over the subject

land. The fact remains that there are permissions for

constructions and constructions are being made over the subject

property. So, no irreparable loss would be caused to the

appellants/plaintiffs. This Court is in agreement with the reasons,

findings and conclusions reached by the Court below.

13. We have gone through B.Venkata Subbayya's case (2